What effect will Tate Modern overlooking judgment have?

In February 2023, the Supreme Court's decision in Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4 – concerning a private nuisance claim by overlooked apartment owners – raised more than one or two eyebrows among property developers and owners.

However, it remains to be seen whether the judgment will open the floodgates to similar claims.

The development, which boasted floor-to-ceiling windows in the claimants' apartments, was adjacent to the Tate Modern's 2016 extension, including a top-floor gallery walkway around four sides. This offered the visiting public an unrestricted view of the London skyline.

The claimants objected because the walkway allowed visitors to see directly into their homes. They also claimed that there were many instances of the public taking photographs of the apartments' interiors, and using binoculars to peer inside.

The claimants sought an injunction against the Tate Modern Gallery, arguing that:

• the viewing gallery was an unreasonable interference with their enjoyment of the apartments, and constituted a nuisance
• this was an infringement to their right to privacy under article 8 of the European Convention on Human Rights.

The court held that overlooking could amount to an actionable nuisance, but in these circumstances the claim for nuisance was not made out.

The court reached this decision on the basis that the defendant's use of the property as a public viewing terrace was reasonable, and that in buying apartments that contained floor-to-ceiling windows the claimants had 'created or submitted themselves to a sensitivity to privacy'.

Furthermore, the court ruled that the claimants could also have taken remedial measures such as fitting net curtains or reflective film, or lowered their fitted solar blinds.

The claimants appealed but the Court of Appeal dismissed them, maintaining that mere overlooking is not capable of giving rise to a claim of nuisance in these circumstances.

The court also held that it was for Parliament to legislate further in relation to overlooking rather than extending the law of nuisance.

The Supreme Court noted that the viewing of the claimants' apartments by those in the walkway went far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use of the defendant's land.

Following this logic through, the Supreme Court clearly felt that erecting and promoting an express viewing platform was an extraordinary use of the land. One might assume that the decision would have been different if the neighbouring property simply had like-for-like floor-to-ceiling windows that overlooked the claimants' apartments.

Indeed, the Supreme Court agreed with the Court of Appeal that parties cannot complain of nuisance simply because their apartment is overlooked by another building – no doubt keen to avoid creating a potentially widely applicable precedent in situations where one building block overlooks another.

In this specific case the gallery – the defendant – had invited members of the public to look out from a terrace from which they could see into the claimants' apartments, and had allowed this activity to continue without interruption.

It was beyond doubt that the visual intrusion from the gallery walkway caused a substantial interference with the ordinary use and enjoyment of the apartments.

Therefore, the court held, there must be some give and take between neighbours when the use of the neighbouring land is 'ordinary'. Furthermore, the fact that the properties had been designed and constructed in a way that made them particularly sensitive to inward view could not increase the liabilities of neighbours.

However, as noted above, the exposed nature of the apartments was not a defence against a nuisance claim where the defendant was not using the land in a common or ordinary way.

In other words, a defendant cannot shift the burden and say that an overlooked neighbour would have not suffered the nuisance if their property was less sensitive or constructed differently.

The court thus disagreed with the High Court that the claimants should have taken measures to avoid being seen such as closing their blinds. It reasoned that it was unacceptable to place the burden on the victim to mitigate the impact of the nuisance caused by a special use of the defendant's property.

The Supreme Court did not determine if the claimants would be entitled to an injunction, injunction and damages, or damages instead of an injunction; this issue was remitted to the Chancery Division of the High Court to determine.

However, this issue was not subsequently determined as Tate Modern agreed that the relevant viewing gallery would be operated in a different manner so as not to cause nuisance. The High Court proceedings were thus disposed of.

The test for private nuisance boils down to whether the land is being used for a common and ordinary purpose. It seems unlikely that ordinary, residential properties will fail this test – when, for example one apartment overlooks another or an office block – and for that reason the judgment may not have the far-reaching impact that some are predicting.

Nervous property developers and asset owners can take some comfort in this, and the clear commentary that mere overlooking does not amount to private nuisance.

However, this judgment will invariably lead investors and developers to pay closer attention to the full impact that a potential development may have on neighbouring properties.

Equally, where properties are, or could be, overlooked, developers and owners may choose to add further privacy features to their design.